Don’t Fear the USG’s Contracting Officers (But Be Polite During Disputes)

Serenity
Image by gideon_wright via Flickr

If you are a prime contractor to the U.S. Government (USG), chances are you fear the USG.  Not “fear” in the animal sense. But fear in the sense that you may be avoiding discussion about big problems with your contract.  Fear you may upset the USG, and be viewed as biting the hand that feeds you.

Here is why you should get over the fear, and why you should try to address contracting concerns you have with the USG.

You Have Leverage (If You are Contractor that Provides Good-Faith Value)

If you are a contractor that acts in good faith and provides value to the USG, then if a dispute with you comes up, the USG may have a fear.  Further, that fear may be a greater fear than yours.  The USG’s fear may be this: losing you, and the quality business you provide.

The USG has had its share of poor contractors who deal unfairly and/or provide poor value.  If you are a good prime contractor, you are a valuable resource to the USG.

In other words, if you are a quality contractor, you have leverage.  You shouldn’t forget about any leverage you have when a dispute comes up.  A party with leverage can rely on that leverage to bring up concerns, without fear the USG will retaliate or make your life worse.

All Contracts Have at Least Some Problems, and the USG Expects You to Mention Problems You Have (So Long As You Aren’t Impolite About it)

All contracts have some problems arise at some point.   The USG expects that some problems, at least a glitch or two, will arise with any given contract.  The USG will also expect that a prime contractor will raise disputes from time to time.

In short, you will not shock or upset the USG if you raise a concern, big or small, that you have with your contract.

So long as you don’t act mean or difficult about it, chances are the USG will not hold it against you that you raise a dispute.  If you remain polite and factual at all times you raise and address your concerns, then you should maintain a positive relationship with the USG, whether you win or lose those particular disputes.

For example, it is a positive way to address dispute resolution if you tell your Contracting Officer “I am concerned that the costs I paid exceeded the numbers quoted in the bid, and I request that the USG assume those costs.”  It would be negative (and riskier) to deal with disputes by speaking in negative tones, using adjectives and conclusions, e.g. telling the Contacting Officer “These costs are unfair- look at the numbers you quoted me, and see for yourself my company’s been treated badly!”

So long as you and/or your attorney separate negative feelings and negative communications from the dispute process, the dispute process with the USG should not lead to long-term hard feelings or bad business.  To the contrary, many primary contractors with legitimate disputes can often improve their situation and finances in the USG dispute process, assuming they present their case documentation well,  keep their cool, and remain polite during the dispute process.

If You Raise a Dispute, The USG’s Goal is Not to Hurt You– The Goal (Remains) to Get the Project Done

Don’t forget that the USG’s main goal is to get the project done, and to do so promptly and effectively.  The USG usually recognizes that if it took on hard feelings toward a contractor– or if it prolonged an unfair position against a contractor– those stances could unreasonably jeopardize the project getting done effectively.  This is another reason why the USG should (and usually does) keep an open mind to resolving legitimate disputes a contractor raises that relate to completion of a large project.

Many Disputes Can Be Resolved Without Extensive Litigation or Hard Feelings Built Up Through Litigation

Many contracting disputes– and in fact, the majority of disputes that the blog attorney authors’ clients have been involved with– are settled amicably between the parties before extensive litigation has occurred.  Many disputes can be resolved relatively shortly after an initial claim is filed with the Contracting Officer, and before extensive litigation occurs; that is, before months’ or years’-long actions need be taken at a Board of Appeals or federal court.

Even in those less common instances that do take years of litigation, the blog authors have found that the USG is generally a more amicable opponent (less likely to hold unreasonable grudges, etc.) than private party opponents in litigation.  The USG, as a large and public entity, has an unusually large amount of litigation experience, and an unusually high interest– as compared to many private entities– in being fair.

You should not fear raising contract issues with the USG based on litigation-related fears that may be based on bad litigation stories or experiences that are more common to private entities (e.g. stories about angry, lengthy litigation between private contractor and private subcontractor).

The USG is Prohibited, By FAR Law, from Retaliating Against a Contractor for Raising a Contractual Dispute

If you raise a contracting dispute with the USG, then the USG is prohibited by applicable law– specifically, by Federal Acquisition Regulation (FAR) regulations– from retaliating against you and treating you unfairly.

While anti-retaliation law cannot guarantee you will not face any hard feelings or push back during disputes, such law provides yet another disincentive for the USG to mistreat you if you make your contractual disputes politely known.

Conclusion

If you are a primary contractor of the USG, there are many reasons you should not fear raising any concerns or disputes you have.  If you are not convinced by this article, then feel free to let us know (through public comment or private email): what fears do you have?

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